Fioriglio v. City of Atlantic City

• Citation: 996 F.Supp. 379
• Decision Date: 05 March 1998
• Docket Number: No. CIV. A. 96-2295 (JEI).,CIV. A. 96-2295 (JEI).
• Parties: Kim D. FIORIGLIO, Plaintiff, v. CITY OF ATLANTIC CITY, James Whelan, Paul Gallagher, Benjamin Brenner, and Joseph Rush, Defendants.
• Court: U.S. District Court — District of New Jersey

996 F.Supp. 379

Kim D. FIORIGLIO, Plaintiff, v. CITY OF ATLANTIC CITY, James Whelan, Paul Gallagher, Benjamin Brenner, and Joseph Rush, Defendants.

No. CIV. A. 96-2295 (JEI).

United States District Court, D. New Jersey.

March 5, 1998.

COPYRIGHT MATERIAL OMITTED

Perskie & Wallach by M. Daniel Perskie, Northfield, NJ, for Plaintiff.

Zeller & Bryant by Matthew Wieliczko, Woodcrest Pavilion, Cherry Hill, NJ, for Defendant City of Atlantic City.

Murray, Murray & Corrigan by David F. Corrigan, Little Silver, NJ, for Defendant James Whelan.

John H. Rosenberger, Linwood, NJ, for Defendant Paul Gallagher.

Levine, Staller, Sklar, Chan, Brodsky & Donnelly by John M. Donnelly, Brian J. Cullen, Atlantic City, NJ, for Defendant Benjamin Brenner.

Tuohy & Tuohy by Catherine Tuohy, Atlantic City, NJ, for Defendant Joseph Rush.

OPINION

IRENAS, District Judge.

This matter appears before the Court upon the motion for summary judgment of defendants Atlantic City Mayor James Whelan ("Whelan"), Atlantic City Fire Chief Benjamin Brenner ("Brenner"), Atlantic City Solicitor Paul Gallagher ("Gallagher") and the City of Atlantic City on plaintiff Kim Fioriglio's ("Fioriglio") 42 U.S.C. § 1983 civil conspiracy claim, state constitutional claim, tortious interference with contractual advantage claim and New Jersey Conscientious Employees Protection Act ("CEPA"), N.J.S.A. 34:19-1 et seq., claim. Because the Court finds that plaintiff has failed to present any facts under which he could succeed on these claims, the Court will grant the defendants' motions' on all of the claims and dismiss plaintiff's case in its entirety.

I. BACKGROUND

On September 22, 1990, plaintiff took a written examination given by the New Jersey Department of Personnel ("NJDOP") for the position of Battalion Fire Chief for the City of Atlantic City. Pl. Compl. at ¶ 13. The NJDOP then administered an oral assessment examination of plaintiff on November 21, 1991. Pl. Compl. at ¶ 14.¹ This oral assessment examination is also calculated into a candidate's test score for Battalion Chief. Id. After these examinations, the NJDOP posted the exam results and plaintiff had received the highest score, ranking him number one on the promotion eligibility list. See NJDOP Certification of Eligibility, Fire Battalion Chief, 9/22/90 Examination Results, Exh. K to Pl. Br. Several candidates questioned their scores and appealed the grading of the test. Pl. Br. at 1. An NJDOP test expert, in accordance with a Consent Decree which obligated the NJDOP to review the fire department's selection process for ranks above firefighter to ensure no adverse impact on black and Hispanic applicants, see United States v. State of New Jersey, 473 F.Supp. 1199 (D.N.J.1979), considered these appeals and determined that the examination would have to be rescored. See Fioriglio v. New Jersey Dep't of Personnel, Civ. A. No. 96-3342(JEI), 1996 WL 599400, at *1 (D.N.J. Oct. 15, 1996) (related case before this Court).

While the appeals were still pending, Mayor Whelan, on November 9, 1992, issued a memorandum which set forth the criteria to be considered in the event of a tie between candidates for Battalion Chief. Exh. C to Pl. Br. City residency was to be the first tie-breaking criteria and ranking on prior tests was to be the second tie-breaking criteria. Id. The Mayor indicated that these criteria had been utilized in deciding past ties in the police department. Id.

On November 20, 1992, the NJDOP posted the results of the rescored Battalion Chief examination and plaintiff's score placed him in a four-way tie for sixth place with Dennis Brooks ("Brooks"), Terrence Mooney ("Mooney") and Daniel Tamburilla ("Tamburilla"). Pl. Compl. at ¶ 21. In the period between November 20, 1992, and April 26, 1993, a number of Atlantic City Fire Captains were promoted to Battalion Chief, leaving plaintiff and the other three men in a tie for the next available promotion. Pl. Br. at 1. Then, on April 26, 1993, Brooks was promoted to the rank of Battalion Chief in accordance with the Atlantic City's veteran's preference policy. Thus, plaintiff now faced a three way tie with Mooney and Tamburilla. See Deposition of Benjamin Brenner, Exh. J to Pl. Br., at 38 [hereinafter Brenner Dep.]. Of these three candidates, plaintiff was the only city resident. Pl. Compl. at ¶ 29.

On February 1, 1994, plaintiff decided to run for Mayor of Atlantic City against the incumbent Mayor, defendant Whelan. Pl. Compl. at ¶ 22. Plaintiff alleges that he ran a vigorous campaign in which he heavily criticized Mayor Whelan's administration. Pl. Br. at 1. In his written campaign materials, plaintiff alleged that Mayor Whelan used his position as Mayor to hire political "cronies" to key governmental positions in order to gain political favor, that he hired incompetent persons, and that he created unnecessary and duplicative positions in the city government which then were given out to political friends and allies as a reward for political support. Pl. Compl. at ¶ 24; see Fioriglio Campaign Literature, Exh. G to Pl. Br. [hereinafter Campaign Literature]. Plaintiff also accused the Mayor of suppressing information at city council meetings and misusing tax monies. See Campaign Literature.

Plaintiff has accused Mayor Whelan of making various comments about his campaign for Mayor and the Mayor's alleged intention not to promote plaintiff. He claims the Mayor was overheard saying "F__ck you, F__ck you, you fireman and f__ck that Fioriglio, he will never be Mayor," Recorded Statement of Fire Inspector Scott McKnight, 5/28/96, Exh. M to Pl. Br., and "Kim would never be promoted as long as [I am] Mayor," Recorded Statement of Firefighter Wayne Gottwalls, 8/02/96, Exh. N to Pl. Br. He also claims the Mayor told another fire captain, "you firemen always want something and you go and support that asshole Fioriglio for Mayor against me and then you think I am going to give an appointment." Recorded Statement of James Boyer, 9/04/96, Exh. O to Pl. Br. As proof of these comments, he attempts to submit three unsigned, unsworn transcripts of tape recorded statements supposedly made by two firefighters and one fire captain who claim that the Mayor spoke out against plaintiff. Plaintiff allegedly tape recorded these statements and then transcribed them for the Court. However, none of the statements are sworn to or signed by the alleged speakers. Furthermore, neither plaintiff nor his attorney has submitted an affidavit attesting to the transcripts' validity.

On May 12, 1994, Mayor Whelan was elected to his second term. Pl. Compl. at ¶ 25. Plaintiff received fewer than 200 votes in the election. See Sept. 19, 1997 Deposition of Kim Fioriglio, Exh. C to the Certification of Brian J. Cullen, at p. 58 [hereinafter Fioriglio Sept. 19 Dep.].

On October 4, 1994, Mooney was given a temporary promotion to Battalion Chief. Plaintiff allegedly protested this appointment to the Atlantic City Firefighters' Local 198 and its president, defendant Joseph Rush. However, he received no support. He also protested to the NJDOP, claiming that he was the next to be promoted under the current policy due to his status as a city resident and alleging that any temporary appointment was improper because there was no provision in the NJDOP regulations providing for temporary appointments. See Pl. Br. at 2; Pl. Compl. at ¶ 34. The NJDOP determined there was no impropriety.

On October 14, 1994, the NJDOP issued new guidelines for the Disposition of a Certification. N.J.A.C. 4A:4-4.8. The new guidelines required officials with appointment authority to give a statement of the reasons why an appointee would be selected over another in the case of a tied score. See id. In response to the new guidelines and at the urging of Chief Brenner, the Mayor enacted Executive Order # 3 of 1994, effective as of December 5, 1994. Exh. I to Pl. Br. [hereinafter Executive Order # 3]. The Executive Order states that:

The appointing authority shall weigh each of the [following] six criteria, without any particular hierarchy of order or priority: Criteria No. 1: Disciplinary History. The appointing authority shall consider all disciplinary action completed, major and minor, prior to and subsequent to the promulgation of the eligibility list. It is acknowledged that major discipline occurring in the five years prior to the promulgation of the eligibility list is factored into seniority, and the appointing authority will give this aspect due consideration so as to avoid double jeopardy.

Criteria No. 2: Education. The appointing authority will give due consideration to educational background with particular emphasis to be given to management training.

Criteria No. 3: Sick Leave Abuse. The appropriate utilization of sick time shall be considered by the appointing authority. The absence of abuse of sick time shall be an affirmative consideration within the purview of the appointing authority.

Criteria No. 4: Diversity. The appointing authority shall, when available, exercise its discretion to promote diversity in the work place so as to appropriately reflect the makeup of the community.

Criteria No. 5: Residency. The appointing authority shall give due consideration to permanent residents of the City as an affirmative criteria.

Criteria No. 6: Raw Score. The appointing authority reserves the right to consider raw score as determinative in the absence of all other differentiation between or among candidates of equal rank. This criteria applies only to tie breakers, and not to determinations within the Rule of Three.

Plaintiff alleges that on or about December 2, 1994, defendants Whelan, Brenner and Gallagher met to discuss the tie-breaking policy which eventually became Executive Order # 3. Pl. Br. at 2. He claims that these defendants specifically set out to amend the criteria in a manner that would allow them to pass over the plaintiff for promotion. Pl. Br. at 2; Pl. Compl. at ¶ 30. As support...